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"serious" added nothing to the gravity of the conduct. Any willful misconduct that leads to death or great bodily injury must neces

sarily be serious.

In reference to the Powell Case, from Scotland, it is apparent that the decision is based upon two grounds: First, that the accident did not arise "out of the employment" of the deceased; and, second, that he was guilty of deliberate and intentional wrongdoing when he went to a place where he had no right to be and placed himself in a dangerous position against which he had been warned.

The Fanny Callahan Case was decided upon the same grounds.

[2] In all these cases holding that the victim of the accident was chargeable with willful misconduct, it seems to have been assumed that the violation of the rule was intentional and deliberate, and, as far as we are advised, there was no attempt to excuse

power of continuous application and concentration, it will, upon the other hand, center its thought for a brief time and to its peril upon one matter to the exclusion of all else."

With this well-known characteristic of

youth in view why should it be thought a strange thing that a boy of 15 should forget an order given him, and, in a moment of forgetfulness, do that which was forbidden? And acting thus, how could his conduct be justly denominated "willful misconduct"? In that event it would be, properly speaking, willful misconduct to no greater degree than if he did the act in the absence of any order.

In either case it might be, and, in this case it would be, contributory negligence but nothing more.

ly disobedient frame of mind, and is in aid of the conclusion that there was an absence

of willfulness.

[3] Looking at the evidence, we find sufficient support for the inference that he was not intentionally and deliberately disobedient. The boy himself, when asked: "Were you aware at the time that you were violating your employer's instructions? Did you know and think at the time that you were disobeying orders?" replied: "No, sir; I didn't think." He further said that at the

It is probably true, as contended, that the portion of the finding as to oiling the machinery while in motion in order to save time does not indicate a sufficient palliation or excuse for his conduct, yet it is at least opit on the ground of inadvertence or thought-posed to the idea that he had an intentionallessness. The violation of a rule known to the party would, of course, raise the presumption that it was done deliberately and intentionally, but is it not a disputable presumption? May not a person, although guilty of an infraction of an order given for his protection, show that at the time he was unmindful of the order, and that his act was the result of inattention and thoughtlessness and without any real purpose to be contumacious? Petitioner contends that to permit this course would open the door to fraud and perjury. In some cases, no doubt, such would be the effect, but these evils will never be entirely avoided in the attempt to administer justice through human instrumentalities. But the objection goes rather to the weight and effect of the evidence than to its admissibility. When the person violates a known rule, it should be held ordinarily that be does it deliberately, but we do not think that the door should be closed entirely against the inquiry whether it may not have been the result of thoughtlessness and inadvertence, at least in the case of a mere child. Where a minor is involved why should not the same consideration be shown as in the ordinary action for damages wherein contributory negligence is urged as a defense? Why should not the distinction be recognized that is so learnedly pointed out in the case of Maud Guyer v. Sterling Laundry Co., 171 Cal. 761, 154 Pac. 1057? Therein, as to minors, it is said:

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time he did not remember that Diestelhorst had told him not to oil the machinery while in motion. Indeed, one cannot read the record without obtaining a strong impression of the candor and honesty of the witness. He was anxious to save time, and he wanted to get out as much dirt as possible. He was in the habit of oiling right after lunch before the machinery was put in motion, but on this occasion he started it in obedience to the direction of petitioner, or, as the boy explained it:

"We were then eating dinner, and right after dinner Diestelhorst wanted to go and fix a bridge across the creek, and there was a jack' out where we were dredging, and he said to move that, and I started up, and he passed the chain around it and moved it, and I shut off the power and went to oiling."

We think from these considerations that the Commission might conclude with legal propriety that the boy was not chargeable with such willful misconduct as to deprive him of the benefits of the Compensation Act and the writ is therefore discharged, and the award affirmed.

We concur: CHIPMAN, P. J.; HART, J.

(33 Cal. App. 15)

DILGER v. WHITTIER. (Civ. 1616.) ¡District Court of Appeal, Second District, California. Feb. 14, 1917.)

1. HIGHWAYS 184(2) INJURY TO PEDESTRIAN-EVIDENCE-SUFFICIENCY.

In an action for personal injuries sustained by a child when struck by an automobile, which was diverted from the roadway by reason of a collision with an automobile operated by defendant, evidence held to justify a finding that the injury was due solely to defendant's negligence in operating his car, and that the operator of the other car was not guilty of any negligence which contributed to plaintiff's injury.

[Ed. Note.-For other cases, see Highways, Cent. Dig. 88 472, 4732.]

2. APPEAL AND ERROR 1032(1)—BURDEN TO SHOW PREJUDICIAL ERROR.

It devolves upon an appellant to show prej. udicial error.

SHAW, J. This is an action brought by plaintiff, a minor four years of age, to recover damages for personal injuries sustained while playing in a vacant lot adjoining her father's place of business, as a result of being struck by an automobile driven by one Earl Oldham, which, it is claimed, was diverted from the roadway and precipitated against plaintiff by reason of colliding with another automobile negligently operated by defendant. The case was tried by a jury, which rendered a verdict for plaintiff in the sum of $1,000, for which judgment was entered in her favor, and from which, and an order denying his motion for a new trial, defendant appeals.

Appellant's chief contention is that the verdict is not justified by the evidence, in

[Ed. Note. For other cases, see Appeal and that it fails to show that defendant was Error, Cent. Dig. §§ 4047, 4051.] guilty of any negligence in operating his car, 3. APPEAL AND ERROR 928(2)—REVIEW-but, on the contrary, shows that the injury PRESUMPTIONS.

Where the instructions are omitted from the record on appeal, the appellate court must presume that the jury was properly instructed as to the law applicable to the case.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3750, 3753.]

4. EVIDENCE 474(8)-SPEED-KNOWLEDGE OF WITNESS.

As the objection that a witness who testified as to the speed of defendant's car had not seen the car in sufficient time prior to the collision to enable him to testify on the subject goes to the weight, rather than to the competency, of the evidence, and as such testimony differed but little from that offered by the defendant on the same subject, its admission was not error.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2202.]

5. APPEAL AND ERROR 1050(1)—HARMLESS ERROR.

Any error in the admission in evidence of the torn clothes of the child, and testimony as to tears and rents therein, was harmless as the evidence did not tend to show either negligence of defendant or injuries to the child.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.] 6. NEW TRIAL 88-GROUNDS-DISCRETION OF COURT.

As no facts were stated from which the trial

court could determine what effort the sheriff had made to serve a subpoena upon two alleged material witnesses for defendant, and it was not shown that the defendant placed the subpoena in the hands of the sheriff before the trial was commenced, there was no abuse of discretion in denying a new trial upon the ground of surprise, which ordinary prudence could not have guarded against.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 176.]

sustained was due to Oldham's negligence. Not only is the evidence touching the action of both Oldham and defendant in operating their respective cars conflicting, but the plat

of the location and position of the cars used by the witnesses in testifying is not before us; hence much of the testimony is meaningless. No purpose could be served by an extended reference to the conflicting evidence. Suffice it to say, there appears to be, testimony which tended to show and which, when illustrated by the plat in connection with which it was given, might, and therefore since it is not brought up we must assume that it did, clearly justify the jury in finding that the injury was due solely and alone to defendant's negligence in operating his car.

[1-3] The accident occurred in the unincorporated town of Fellows, in Kern county, through which a highway, known as the The father of the plaintiff, W. J. Dilger, had Midway road, extended north and south. a place of business on the east side of this highway, which, between the sidewalks, was some 47 feet in width. Adjoining Dilger's place of business on the north were two vacant lots, on one of which, and next to the northwest corner of her father's house, plaintiff was playing. Defendant was driving a Cadillac car on the right-hand side of this highway, going in a southerly direction at a speed of some 20 or 25 miles per hour, and Oldham, driving a Ford car, was closely following a Santa Fé car going northerly and

Appeal from Superior Court, Kern County; traveling near the center of the roadway. J. W. Mahon, Judge.

Action by Florencia Dilger, a minor, by W. J. Dilger, her guardian ad litem, against C. F. Whittier. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Affirmed.

At a point about opposite Dilger's place, defendant met the Santa Fé car, when, instead of passing it to the right, he turned to the left thereof, and when clear of the Santa Fé car met the one driven by Oldham, who, while in the rear of and close to the Santa Fé Geo. E. Whitaker, of Bakersfield, for ap-car, was nearer to the sidewalk on his right. pellant. Rowen Irwin, of Bakersfield, and At the time it appears that Oldham was travFred L. Seybolt, of San Francisco, for re-eling at a speed of 5 miles per hour, and, spondent. seeing defendant approaching at a high speed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

164 P.-4

the court could determine what effort the sheriff made to serve the subpoena, and from aught that is shown to the contrary, defendant did not place the subpoena in the hands of the sheriff with instructions to serve it until the trial was commenced. It cannot be said there was any abuse of discretion on the part of the court in denying the motion upon such ground.

Finding no prejudicial error in the record, the judgment and order appealed from are affirmed.

immediately in front of him on the wrong out success. No facts are stated from which side of the highway, turned sharply to the right, toward the vacant lot, in an effort to escape, when defendant's car collided with the side of the Ford machine, projecting it some 15 feet, against the child on the vacant lot. Presumably the jury concluded the accident would not have occurred had defendant observed the law of the road, which required him to pass to the right of the Santa Fé car. On the other hand, Oldham, since he was operating his car slowly on the side of the street to which he was entitled, was not, as shown by the record, guilty of any negligence which contributed to plaintiff's injury. It devolves upon an appellant to affirmatively show prejudicial error. Upon the record presented it cannot be said there is an absence of sufficient evidence HAMMOND v. PACIFIC ELECTRIC RY. CO. (Civ. 2205.) to justify the verdict of the jury, which we must presume, in the absence of the instruc- | (District Court of Appeal, Second District, Caltions, copy of which is omitted from the record, was properly instructed as to the law ap-1. plicable to the case.

We concur: CONREY, P. J.; JAMES, J.

(32 Cal. App. 756)

ifornia. Feb. 8, 1917.)

STREET RAILROADS 98(G)-ACCIDENTS ON TRACKS-DUTY TO PEDESTRIANS.

The duty of a pedestrian in crossing a city [4] Basing his claim upon the fact that W. street is to use ordinary care with regard to J. Dilger's view of defendant's car prior to street cars, which is the degree of care which its colliding with that of Oldham was not people of ordinary prudent habits would reasonably be expected to exercise under the circumof sufficient length as to time as to enable stances of a given case, and the rule governing him to testify upon the subject, appellant in- the duty of a pedestrian about to cross a steam sists the court erred in permitting him to tes-railroad or an interurban electric railroad in the tify that it was running at a speed of 20 to 25 country does not apply to city streets "in all its miles per hour. In our opinion, the objection [Ed. Note. For other cases, see Street Railgoes to the weight rather than to the compe- roads, Cent. Dig. § 207.] tency of the evidence, which differed little, if any, from evidence upon the same subject offered by defendant. In no event could it have affected the verdict.

[5] The court, over defendant's objection, permitted plaintiff to introduce in evidence the torn clothes of the child, and to testify as to tears and rents therein. While the evidence was immaterial, inasmuch as it did not tend to show either negligence on the part of defendant or injuries to the child, nevertheless it is impossible to conceive how defendant could have been prejudiced by the ruling. Surely the dress shown to have rents in it was not calculated to appeal to the passions of the jury to such an extent as to cause it to render a verdict for excessive damages; nor is the verdict in this case, when the child's injuries are considered, subject to such objection.

[6] One of the appellant's grounds of motion for a new trial was surprise which ordinary prudence could not have guarded against, in support of which defendant filed the affidavit of his attorney, from which it appears that at some time-whether before or pending the trial is not shown-he placed in the hands of the sheriff of Kern county for service a subpoena for Earl Oldham and one Mait Smith, both of whom, it was claimed. would give material testimony in favor of the defendant; that diligent search was made by said sheriff for said witnesses, with

strictness."

2. STREET RAILROADS 114(13)-ACCIDENTS TRACKS

ON

CIENCY.

ACTIONS-EVIDENCE-SUFFI

In action for damages for personal injuries received by plaintiff when hit by defendant's street car, in which negligence of defendant was established, evidence held to support a jury finding that plaintiff was not guilty of contributory negligence.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 248.]

3. TRIAL 260(8)-PERSONAL INJURY-IN

STRUCTIONS.

that a person alighting from a car and intending The rule stated in a requested instruction, to cross the street behind the same is charged with the duty of exercising ordinary care to tempting to cross, and is charged with the duty look and listen for approaching cars before atof keeping up the exercise of ordinary care in looking and listening for approaching danger until the last moment, before passing from a place of safety to one of danger, and that the omission of such ordinary care constitutes negligence, and if thereby plaintiff contributes directly or proximately to the injury she cannot recover, was sufficiently and correctly stated in an instruction that the motorman in charge of a car has the right to assume that a pedestrian in the street is in possession of all his faculties, unless there is notice to the contrary, and will use reasonable diligence and ordinary care to avoid danger to himself, and that the failure to use such diligence and care is negligence, and a position of danger from which she was unable that if the plaintiff negligently placed herself in to escape, and the motorman of defendant's car, which struck her, used every effort in his power to avoid striking her after discovering her danger, verdict must be for defendant.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 657.]

4. TRIAL 296(4, 5)-PERSONAL INJURY-INSTRUCTIONS.

An instruction that if plaintiff found herself suddenly in peril, without sufficient time to consider all the circumstances, she might be excusable for omitting some precautions in making an immediate choice under this disturbing influence, although, if her mind had been clear, she ought to have done otherwise, and that if she found herself in imminent danger just prior to and at the time of the collision, and at that time tried to escape the peril, and in thus doing acted as an ordinarily prudent and reasonable person would have acted under the same or similar circumstances, the jury could not find on this account that she was guilty of contributory negligence, did not purport to say that a person in sudden peril by his own negligence is relieved from the imputation of contributory negligence, but only stated the principle that an unwise choice under such peril is not of itself contributory negligence, when considered with instructions that if the plaintiff had failed to use such care that a person of ordinary prudence would have used under the same or similar circumstances, and such failure contributed proximately caused the injury, plaintiff could not recover, and an instruction that all of the instructions ought to be considered as a whole in arriving at the verdict.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 709.]

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6. STREET RAILROADS 102(2) INJURY TO PEDESTRIANS CONTRIBUTORY NEGLIGENCEPROXIMATE CAUSE.

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Action by Leah Hammond against the Pacific Electric Railway Company. From a judgment for plaintiff, and from an order denying motion for a new trial, defendant appeals. Affirmed.

Frank Karr, R. C. Gortner, and A. W. Ashburn, Jr., all of Los Angeles, for appellant. W. O. Morton, Harry A. Holizer, T. A. Williams, and C. B. Morton, all of Los Angeles, for respondent.

CONREY, P. J. This is an action to recover damages for personal injuries received by the plaintiff, who was hit by a car of the defendant while she was crossing a street in the city of Pasadena. Fair Oaks avenue runs north and south, and is intersected by California street. The defendant has a doubletrack railroad on each of those streets. Its interurban cars run on Fair Oaks avenue, and some of its north-bound cars turn east on California street at that intersection. Some of its local cars run westerly on California street from Fair Oaks avenue. plaintiff was a passenger coming from Los Angeles, and as such passenger she received a transfer entitling her to go west on a California Street car. The northbound two-car train from Los Angeles, on which she was a passenger, stopped at California street, and then turned east on that street. The plaintiff alighted from the rear car of the train at a point about 100 feet south of California street. A West California Street car was waiting on the west side of Fair Oaks ave

The

The mere fact that plaintiff was careless and negligent is not of itself sufficient to excuse the defendant, if such carelessness is remote in the chain of causation and did not contribute prox-nue to receive passengers. This was at 6 imately to the cause of the injury.

[Ed. Note.-For other cases, see Street Railroads. Cent. Dig. § 203.]

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REVIEW

7. APPEAL AND ERROR 1066 PREJUDICIAL ERROR. Although an instruction that the mere fact that plaintiff was negligent did not excuse defendant's negligence, if plaintiff's negligence was remote and did not contribute proximately to the injury was irrelevant, it was not prejudicial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Trial, Cent. Dig. § 558.]

8. STREET RAILROADS 118(11)-ACTION FOR INJURY-INSTRUCTIONS.

An instruction that if plaintiff, at the time of the accident, may or may not have been guilty of such contributory negligence as under the instructions of the court relieved the defendant of liability, which otherwise would have attached, before the jury could find for defendant it must appear by the preponderance of the evidence that plaintiff was guilty of such contributory negligence as to excuse the defendant, which must appear from satisfactory evidence or such inferences as the jury may legally draw from the evidence, that the jury must not speculate or guess, but their minds must be convinced, does not state the doctrine of comparative negligence, but only requires that it be established that plaintiff was guilty of such contributory negligence as to excuse defendant.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 268.]

When she alighted from the steps of her o'clock in the evening on January 29, 1912. car on the east side thereof, she looked north and saw some of the passengers at the front of the train, who were moving around the front of the train to go to the California Street car.

The plaintiff looked south, and then crossed the track at the rear of her train, and started to cross the westerly or south-bound track to go to the California Street car. In so doing she did not look to the north, and did not either see or hear an approaching south-bound car which was coming toward her at the rate of about 12 miles per hour. The car was so close to her that, after coming into the place of danger, she was unable to escape, and the motorman was unable to stop the train in time to avoid striking the plaintiff.

The plaintiff alleged that the defendant was negligent, in that it was moving its train at an excessive and dangerous rate of speed, and in that no warning or signal was given by which she could be notified of the approach of the car. Although there is some yonflict in the evidence, there is sufficient evidence to support the jury's finding of negligence on the part of the defendant, and we

Appeal from Superior Court, Los Angeles shall assume that such negligence was duly County; Willis I. Morrison, Judge. established. The defendant, in addition to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

denying its own negligence, pleaded that the use reasonable diligence and ordinary care plaintiff did not exercise ordinary care to to avoid danger to himself, and that the failavoid being injured, and that her injuries ure to use such diligence and care is negliwere directly and proximately contributed to gence. They were also instructed: and caused by her own negligence. The verdict and judgment were in favor of the plaintiff, and the defendant appeals from the judgment, as well as from an order denying Its motion for a new trial.

[1, 2] On behalf of appellant it is insisted that the evidence proves, without conflict, that the plaintiff was guilty of contributory negligence directly causing her injury, since it is admitted by her own testimony and shown by all of the evidence in the case that she passed over from the north-bound track to the south-bound track without looking northward to see whether any car was approaching. In order to sustain this contention it would be necessary to hold, as matter of law, that under the circumstances stated the plaintiff was negligent in failing to look to the north before she moved into the place of danger. Whatever might be said as to the rule governing the duty of a pedestrian about to cross a steam railroad or an interurban electric railroad in the country, it does not apply "in all its strictness" as against pedestrians in crossing a city street. Under the circumstances of this case, the plaintiff was required to use ordinary care, and that is the degree of care which people of ordinary prudent habits could reasonably be expected to exercise under the circumstances of a given case. We may say here, as was said in Driscoll v. Cable Railway Co., 97 Cal. 553, 567, 32 Pac. 591, 33 Am. St. Rep. 203, that considering all the evidence and circumstances in the case at bar, we cannot say that the jury abused its power in holding that the deceased was not guilty of contributory negligence. To same effect see Arbunich v. United Railroads, 28 Cal. App. 291, 294, 152 Pac. 51.

[3] It is claimed that the court erred in refusing to give an instruction requested by the defendant as follows:

"If you find from the evidence that the plaintiff negligently placed herself in a position of danger from which she was unable to escape, and that the motorman of defendant's car which came in contact with her, used every effort in his power to avoid striking her after discovering her danger, then your verdict must be in favor of defendant."

In Arbunich v. United Railroads, supra, the appellant complained that the court erred in modifying the following instruction requested by the defendant:

law is that one riding or walking along or across "In cases of this character the correct rule of the tracks of a street railroad company must use reasonable care in the exercise of his faculties of sight or hearing to watch or listen for cars going in either direction."

The court gave that instruction in the following modified form:

of law is that one riding or walking along or across the tracks of a street railroad company must use reasonable care and precautions for his own safety."

"In cases of this character the correct rule

Discussing this matter, the District Court of Appeal of the First District said:

"It must be conceded that the cases cited by the appellant in support of the correctness as a the form requested by it sustain its contention matter of law of the foregoing instruction in in that regard, and that, had the court refused to give said instruction or one similar to it in effect, its action in so refusing.would have been reversible error; but, in our opinion, the court gave in substance and effect, although not in its requested detail, the defendant's instruction, and that the language of the court, requiring persons walking across the tracks of a street railtheir own safety, would suggest to the minds way to use reasonable care and precautions for of the jurors as reasonable men that such care and precaution would naturally consist in the exercise of their faculties of sight and hearing." The Supreme Court denied a rehearing in that case.

[4, 5] Error is predicated upon instructions 19, 25, and a part of 24, as given by the court to the jury. No. 19 is as follows:

"In judging the conduct of the plaintiff, you "A person alighting from a car as the plaintiff must view the situation as it appeared to her did in this case, and intending to proceed across just prior to or at the time of the accident. If the street behind the same, is charged with the she found herself suddenly put into peril, withduty of exercising ordinary care in looking and out having sufficient time to consider all the cirlistening for approaching cars, before proceeding cumstances, then she might be excusable for to attempt the crossing, and is charged likewise omitting some precautions or taking an immewith the duty of keeping up the exercise of ordi-diate choice under this disturbing influence, alnary care in looking and listening for approach- though, if her mind had been clear, she ought to ing danger, until the last moment before pass- have done otherwise. If she found herself in ing from a place of safety to one of danger. The imminent danger just prior to and at the time of omission of such ordinary care constitutes neg- the collision, and at that time, tried to escape ligence and if thereby a plaintiff contributes di- the peril, and in thus doing acted as an ordirectly or proximately to the injury ensuing, she narily prudent and reasonable person would have acted under the same or similar circumthis account that she was guilty of contributory stances and conditions, then you cannot find on negligence. As the court has instructed you, negligence is commensurate with the circumstances under investigation."

cannot recover."

This instruction might well have been given, as it is a correct statement of the law. We find, however, that in other instructions the same rule was correctly stated in sufficiently definite terms. The jury was told that the motorman in charge of a car has the right to assume that a pedestrian on the street is in possession of all his faculties, unless there is notice to the contrary, and will

No. 25 is as follows:

"If the plaintiff, at the time of the accident, may or may not have been guilty of such contributory negligence, as under the instructions of the court would relieve the defendant from any liability which otherwise would have attach

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